Report No. 27

Order XXI, rule 2 and counter-affidavits

1. Under Order XXI, rule 2(2), the judgment-debtor may inform the court of the payment or adjustment of the decree and apply to the court to issue a notice to the decree-holder to show cause why the payment, etc., should not be recorded, etc. The form of notice is given in Appendix E, form No. 1. A question that has arisen in this connection is, whether a counter-affidavit by the judgment-debtor (within the period of limitation provided in old Article 174, now Article 125) informing the court about the adjustment, etc., is sufficient, when there is no prayer for issue of notice. Case-law on the subject is summarised below. In an earlier case, the Madras High Court1 pointed out that to treat an affidavit as application was to ignore the langauge of rule 2(2) which required notice, etc. The case does not seem to have been a referred to in a later case2, where an application under Order XXI, rule 90 was treated as sufficient compliance with rule 2.

2. The Calcutta High Court in one case3 held, that the objection of the judgment-debtor could not be treated as an "application" under old section 258. A recent decision on the subject seems to have accepted this position4. The same strict view has been taken by a majority of the Judges in an Allahabad decision5. Desai J. in that case has given several reasons in support of this conclusion; first, that rule 2(2) requires not only information to the court but an application; secondly, that on an objection by the judgment-debtor to the execution of the decree on the ground of satisfaction, etc., the only possible reply which a decree-holder could give was that stated in Order XXI, rule 2(3) itself, which bars recognition of uncertified payment, etc.; and thirdly, even if the objection is filed within the limitation period, that is of no consequence. He further pointed out, that there was no reason why the judgment-debtor when the matter is in his own hands, should fail to make an application. If every objection to execution on the ground of payment were treated as an application under sub-rule (2), there would be no sense in sub-rule (3).

3. A liberal view has, however, been taken by the High Court of Bombay6, and by the Andhra Pradesh High Court7. This view attaches importance to the substance of the matter. The liberal view seems to be correct. The matter does not seem to be of sufficient importance to require an amendment of the rule.

1. Lodd Govind Doss v. Ram Doss, (1913) 24 Nuj 88.

2. Kandaswami v. Narasimha, AIR 1952 Mad 582.

3. Bajrang Bahari v. Lachmi Narain, (1912) 15 CLJ 88.

4. Bimla Bala v. Bala Krishna, AIR 1957 Cal 308 (Guha J.).

5. Akbar Ali v. Dr. Ishwar Saran, ILR (1957) 2 All 1: AIR 1957 All 622 (Desai and Mukerjee JJ., Beg J. contra).

6. Kalyanji v. Dharamji, AIR 1935 Born 303 (Broomfield J.).

7. Chengayya v. Chenga, AIR 1959 AP 632 (FB).